If I tested positive for alcohol, can my insurer claim back what it paid?
Yes, if the accident happened because you were driving under the influence of alcohol. The insurer has to pay the victims, but it can then claim back what it paid from the driver, the owner and the insured within one year of paying. The law refers to damage caused by driving under the influence of alcohol, so there are good arguments for saying that testing positive is not enough and that the insurer has to prove that the alcohol played a part in the accident. In addition, the policy usually excludes damage to your own car in that case, although that exclusion is only valid if it is highlighted and separately signed.
Alburquerque Abogados
José Manuel AlburquerqueWhat the insurer pays
- Always, the harm to the victims, including a passenger who knew you had been drinking, although that passenger's compensation may be reduced for having agreed to travel with you.
- Damage to your own car and your own injuries, only if the policy does not validly exclude them.
When it can claim back what it paid
- If the damage was caused by driving under the influence of alcohol or drugs, or by a deliberate act.
- If what was paid to the victims exceeds the limits of compulsory motor insurance, which are very high, the insurer can only claim that excess back from you if the policy excluded alcohol with a clause that was highlighted and separately signed.
- The insurer has one year to claim from you, from when it paid the victim.
How to defend yourself
Review the police report and check whether the alcohol tests were carried out with the proper safeguards. Check too whether the accident was really caused by the alcohol or by something else, such as a manoeuvre by the other driver. If there are criminal proceedings, what is decided in them about the cause of the accident will influence the insurer's claim. Remember that driving with more than 0,60 milligrams of alcohol per litre of exhaled air is always a criminal offence. Below that level it can also be one if the alcohol affected your driving.
This answer is provided for educational purposes and offers initial guidance on the question raised. Every matter has its own circumstances and nuances that require individual assessment. For that reason, before taking decisions with significant consequences, it is advisable to consult a professional and not to rely solely on this information. Personalised advice makes it possible to apply these explanations to the specific case and to assess the options available with greater certainty.